Claudia J. McDowell, partner, Poole & Shaffery, LLP
In this digital age, most people have digital assets. These include social media accounts, financial accounts, email and everything in-between. Many of these assets will need to be accessible after your death. California has enacted the Revised Uniform Fiduciary Access to Digital Asset, or RUFADAA, to assist with these issues.
Gaining access to these accounts is virtually impossible unless the password is known. We update passwords on a regular basis, and it’s difficult to remember all the passwords. The best practice is to leave a current, updated list of all digital assets and accounts with the most recent password in a secure location for your successor trustee or personal representative, along with your will and your trust documents.
Many digital assets have online tools allowing the user to provide instruction concerning how digital accounts should be managed. These online directions may prevail over the instructions in a will or a trust so make sure these online account tools are configured for your digital assets to ensure accordance with your will and trust directions.
The terms of service agreement, or TOSA, that we agree to for online digital access are important. Some TOSAs provide that upon your death, your account and content will be deleted unless you have directed otherwise. Facebook typically “memorializes” Facebook profiles when a user passes away. This freezes the profile and no one may download or post on it. This may mean that photos and posts cannot be preserved. Facebook allows the user to designate a legacy contact who can control the decedent’s profile.
For digital currency accounts, it is very important that you leave information concerning the basis of your investment. Many online currency trading sites will not provide this information.
When you meet with your estate planning attorneys, inform them of all your digital assets as part of your estate plan. Keep an updated list of all these digital assets and the passwords in a safe and secure place so that upon your passing, your fiduciary will be able to handle these digital assets.
Claudia McDowell is a partner in the law firm of Poole & Shaffery, LLP. McDowell practices corporate, securities and commercial law and is highly skilled in mergers and acquisitions and transactional negotiations.
